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Comparative Constitutional Law in a Global AgeBook ReviewRuti TeitelNew York Law School

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Recommended Citation117 Harv. L. Rev. 2570 (2003-2004)

BOOK REVIEW

COMPARATIVE CONSTITUTIONAL LAW IN A GLOBAL AGE

COMPARATIVE CONSTITUTIONALISM: CASES AND MATERIALS. Ed­ited by Norman Dorsen, Michel Rosenfeld, Andras Saj6 & Susanne Baer. 2003. St. Paul, Minn.: West Group. Pp. lxv, 1383. $86.oo.

Reviewed by Ruti Teitel*

This Review addresses the very heart of comparative constitutional law's current renaissance. What are the causes of the increasing em­phasis on foreign and international law? What is the meaning of this development in light of present political realities? At a time of global­izing politics, what should be constitutional law's normative relation to the state?

Comparative Constitutionalism's release occurs against the back­drop of a recent wave of constitutional changes, which began in the postwar phase of constitution-making and gained momentum with post-Cold War liberalization,1 European unification processes,2 and the ensuing ramifications of globalization.3 Increasingly, constitutionalism extends beyond the state, complicating constitutional law's relation to contemporary politics.

The dynamic changes are evident in multiple realms. Comparative Constitutionalism, edited by Norman Dorsen, Michel Rosenfeld, An­dras Saj6, and Susanne Baer, is the latest casebook in comparative constitutional law and the second in four years,4 which reflects the contemporary explosion in both the field and the scholarship. 5 At pre-

• Ernst C. Stiefel Professor of Comparative Law, New York Law School. I See generally Ruti Teitel, Post-Communist Constitutionalism: A Transitional Perspective, 26

COLUM. HUM. RTS. L. REV. 167 (1994). 2 See generally J.H.H. WEILER, THE CONSTITUTION OF EUROPE (1999); Joseph H.

Weiler, The Transformation of Europe, 100 YALE L.J. 2403 (1999). 3 See generally ULRICH BECK, WHAT IS GLOBALIZATION (Patrick Camiller trans., 2000);

DAVID HELD ET AL., GLOBAL TRANSFORMATIONS: POLITICS, ECONOMICS AND CULTURE

(1999). 4 See VICKI C. JACKSON & MARK TUSHNET, COMPARATIVE CONSTITUTIONAL LAW:

CASES AND MATERIALS (1999). 5 See, e.g., Bruce Ackerman, The Rise of World Constitutionalism, 83 VA. L. REV. 771 (1997);

see also COMPARATIVE CONSTITUTIONAL FEDERALISM: EUROPE AND AMERICA (Mark Tushnet ed., 1990); Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 YALE L.J. 1225 (1999); Foreword, 1997 UTAH L. REV. 255.

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2004] BOOK REVIEW 2571

sent, there is a plethora of programs, centers, and conferences on comparative constitutional law6 a::id globalism. 7

The issue of the relevance of the constitutional law of other coun­tries is now gaining momentum even in the U.S. Supreme Court:8

6 Law schools offering comparative law programs include Chicago-Kent College of Law, Georgetown University Law Center, George Washington University School of Law, New York University Law School, Notre Dame Law School, St. Mary's University, and Temple University. See The Resource Guide to LL.M. Programs, NAT'L JURIST, at http://www.nationaljurist.com/ lawSchool_program.asp?id=L_L_M_Programs (last visited May 4, 2004).

7 One such example is New York University's Global Law School program. New York Uni­versity Law School's Center for International Studies and Institute for Judicial Administration have hosted regular conferences. See NYU Conference Discusses Impact of International Tribu­nals, INT'L JUD. OBSERVER (Fed. Judicial Ctr./Am. Soc'y of Int') Law, Washington, D.C.), Sept. 1995, at 3; see also INTERNATIONAL LAW DECISIONS IN NATIONAL COURTS 373, 383 (Tho­mas M. Franck & Gregory H. Fox eds., 1996); Yale Law School Establishes Seminar on Global Constitutional Issues, INT'L JUD. OBSERVER (Fed. Judicial Ctr./Am. Soc'y of Int') Law, Wash­ington, D.C.), June 1997, at 2; Conference of European Constitutional Courts, at http://www.confcoconsteu.org/en/common/home.html (last visited May 4, 2004).

8 See, e.g., Lawrence v. Texas, 123 S. Ct. 2472, 2481 (2003) (relying on a European Court of Human Rights case in addressing an issue of constitutional privacy rights); Grutter v. Bollinger, 123 S. Ct. 2325, 2347 (2003) (Ginsburg, J., concurring) (relying on a U.N. resolution); Atkins v. Virginia, 122 S. Ct. 2242, 2249 n.21 (2002) (relying on a European Union amicus brief regarding international standards on the application of the death penalty to mentally retarded criminals); Zadvydas v. Davis, 533 U.S. 678, 72 l (2001) (Kennedy, J., dissenting) (stating that a particular de­tention of aliens "accords with international views on detention of refugees" and citing a U.N. re­port on the subject); Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 403 (2000) (Breyer, J., concur­ring) (finding the Court's First Amendment jurisprudence consistent with decisions of the European Court of Human Rights and the Canadian Supreme Court); Knight v. Florida, 528 U.S. 990, 995-98 (1999) (Breyer, J., dissenting from denial of certiorari) (finding decisions of the Privy Council, the Supreme Court of India, the Supreme Court of Zimbabwe, the European Court of Human Rights, the Canadian Supreme Court, and the U.N. Human Rights Committee instructive in determining whether lengthy delay in execution renders it inhumane); Printz v. United States, 521 U.S. 898, 976 (1997) (Breyer, J., dissenting) (noting how the federal systems of Switzerland, Germany, and the European Union seek to reconcile the practical need for a central authority with the democratic virtues of more local control); Washington v. Glucksberg, 521 U.S. 702, 785-87 (1997) (Souter, J., concurring in the judgment) (examining Dutch constitutional practice on physician-assisted suicide); Mcintyre v. Ohio Elections Comm'n, 514 U.S. 334, 381 (1995) (Scalia, J., dissenting) (arguing that Australian, Canadian, and English laws banning anonymous cam­paign speech suggest that such bans need not impair democracy); Holder v. Hall, 512 U.S. 874, 906 n.14 (1994) (Thomas, J., concurring in the judgment) (mentioning the voting systems of Bel­gium, Cyprus, Lebanon, New Zealand, West Germany, and Zimbabwe in assessing race­consciousness in the American voting system); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 945 n.1 (1992) (Rehnquist, C.J., concurring in part and dissenting in part) (citing abortion decisions by the West German Constitutional Court and the Canadian Supreme Court); Thompson v. Oklahoma, 487 U.S. 815, 830 (1988) (plurality opinion) (stating that execution of ju­veniles violates norms agreed on "by other nations that share our Anglo-American heritage, and by the leading members of the Western European community"); id. at 851 (O'Connor, J., concur­ring in the judgment) (noting that the United States had agreed by ratifying Article 68 of the Ge­neva Convention to set a minimum age of eighteen for capital punishment in certain circum­stances); United States v. Stanley, 483 U.S. 669, 710 (1987) (O'Connor, J., concurring in part and dissenting in part) (relying on the Nuremberg Military Tribunals in arguing against nonconsensual medical experimentation on humans); Enmund v. Florida, 458 U.S. 782, 796-97 n.22 (1982) (not-

HARVARD LAW REVIEW [Vol. 117:2570

more than ever before, there is a growing acceptance of foreign influ­ence in constitutional justice, particularly with regard to human rights.9 Yet there are still profound normative questions regarding the extent to which such influence appropriately guides constitution­making and constitutional interpretation. These questions are the fo­cus of this Review.

As the world globalizes economically, technologically, and politi­cally, the burning question is the extent to which this integration is also taking place in the law. Io Constitutional law appears to be the last frontier. Given constitutionalism 's close nexus to national sover­eignty, which is itself undisputably undergoing transformation, the comparative project faces new challenges. I I Although comparative law previously might have been able to avoid discussing politics and international relations, the present extension of comparative analysis to constitutional questions makes avoidance of such issues impossible.

To a great degree, Comparative Constitutionalism follows an ap­proach that assumes the normative questions raised above regarding the role of comparativism in constitutional law have clear and deter­minate answers. Much of this Review is dedicated to analyzing the methodology that is the basis for these assumptions. This Review ex­plores these questions through discussion of the normative role of the comparative constitutional method. After all, the question of method­ology goes directly to the authority and legitimacy of foreign law. This in turn relates to a longstanding debate in American jurisprudence concerning constitutional interpretation; questions about constitutional law's relation to politics and national identity; and the broader poten­tial in political projects such as the rule of law, nation-building, em­pire,I2 or globalization. I3

Part I introduces Comparative Constitutionalism and the central questions it raises about the method and aims of comparative constitu-

ing the elimination or restriction of felony murder in England, India, Canada, and a "number of other Commonwealth countries").

9 For a discussion of the increasing importance of foreign sources, see infra Part IV. This trend is particularly evident in Eighth Amendment jurisprudence. See Thompson, 487 U.S. at 851-52. Compare Stanford v. Kentucky, 492 U.S. 361, 369 n.1 (1989) (rejecting comparative data regarding the juvenile death penalty in other countries as irrelevant to the interpretation of the Eighth Amendment doctrine), with Atkins, 536 U.S. at 316-17 n.21 (noting the world commu­nity's disapproval of the death penalty for mentally retarded offenders). Regarding the earlier period of the use of foreign sources in constitutional interpretation, see Trap v. Dulles, 356 U.S. 86, 102 & n.35 (1958). See also infra notes rro-rr2 and accompanying text.

10 On the processes of transnationalism, see Harold Hongju Koh, Transnational Legal Process, 75 NEB. L. REV. 181 (1996).

11 See generally HELD ET AL., supra note 3. 12 See generally MICHAEL HARDT & ANTONIO NEGRI, EMPIRE (2000); JACK SNYDER,

MYTHS OF EMPIRE: DOMESTIC POLITICS AND INTERNATIONAL AMBITION (1991). 13 See generally HELD ET AL., supra note 3.

2004) BOOK REVIEW 2573

tional law. Part II locates Comparative Constitutionalism in its intel­lectual history, identifying and discussing its "neofunctionalist" per­spective.14 Part III evaluates Comparative Constitutionalism from the "critical" perspective. Part IV discusses Comparative Constitutional­ism from the "dialogical" perspective. Part V theorizes contemporary constitutional interpretation, elucidating the functionalist contribution as reflected in the paradigmatic uses of comparativism in contempo­rary constitutional rights jurisprudence.

This Review analyzes Comparative Constitutionalism from a meth­odological perspective, illuminating its interpretive ramifications in juxtaposition with those of other comparative approaches. It contends that Comparative Constitutionalism's neofunctionalist method is lim­ited in its capacity to comprehend comparative law's present role and evolution in contemporary globalizing politics. This neofunctionalist approach, which considers legal problems and their solutions in isola­tion, assumes comparativism 's contribution as a general matter in con­temporary globalizing conditions. Nevertheless, this reliance on ab­straction has made the neofunctionalist perspective highly useful in the adjudicatory context and helps to explain the increasing interest in comparative practices.

I. INTRODUCTION

Comparative Constitutionalism is an ambitious undertaking. Its aim is broad and sweeping: it seeks to canvass enduring answers to common constitutional questions. Its method is here termed "neofunc­tionalist. "15 Divided into three parts, the casebook considers what a constitution is (ch. 1) and how it relates to the structure of govern­ments (chs. 2-4). It then moves into polarized discussions of isolated rights or issues (chs. 5-10) and concludes by addressing the constitu­tional guarantees of democracy (ch. 11). The casebook assumes that "[c]omparison is at the center of all serious inquiry and learning" (p. 1) and that one should always conduct the inquiry with an eye to conver­gence. In this regard, Comparative Constitutionalism attempts to re­cover the comparativist project's longstanding ambition of reclaiming a belief in a coherent body of law: 16 "the study of law, naturally, should be drawn to - and benefit from - comparative analysis in general

14 The term "neofunctionalism" is coined here to distinguish functionalism's contemporary renaissance in constitutional law from its uses generally in comparative law. See sources cited infra notes 23-25. In sociology, see TALCOTT PARSONS, ESSAYS ON SOCIOLOGICAL THEORY (1954).

15 The usage herein is not to be confused with neofunctionalism in international relations. See Andrew Moravcsik, Preferences and Power in the European Community: A Liberal Intergovern­mentalist Approach, 31 J. COMMON MARKET STUD. 473, 474-75 (1993).

16 Its actual normative potential is more limited. See infra Part IV.

2574 HARVARD LAW REVIEW [Vol. 117:2570

and comparative constitutional analysis in particular" (p. 1). The casebook is a massive tome - the largest cross-cultural project of its kind. Comparative Constitutionalism's singular focus on problem solving, discussed below, enables comparative work outside a country­specific expertise. Given legal education's evident constraints in this regard, the casebook should have substantial appeal to the academy.

Yet Comparative Constitutionalism is largely silent regarding the nature and ramifications of its method. The casebook pursues a dis­tinct comparative law methodology known as the "functionalist" ap­proach, 1 7 although it does not mention this explicitly. First theorized in the 19oo's, this approach treats comparative law as a technique of problem solving. The subject of comparative analysis is the legal problem, excised from its context: "The basis methodological principle of all comparative law is that of functionality."18 Although scholars historically have applied functionalism to private law problems,19

Comparative Constitutionalism extends this approach to the sorts of problems likely to arise in constitutional decisionmaking. At first blush, the casebook appears simply to extend historical functionalism, generalizing from comparativism in private law to its uses in public, constitutional law. Neofunctionalism's aim, as Comparative Constitu­tionalism reflects, is universal science, in which the existence of vari­ous constitutional systems is assumed and treated as amenable to com­parative inquiry (pp. 10-44). Ultimately, the question that the casebook raises is whether functionalism's renaissance can transcend the various intellectual challenges to such theories of knowledge and thus allow a return to the firm belief in the rationalizing potential of the law. Comparative Constitutionalism answers that question in large part by applying neofunctionalism to today's practical realities.

II. THE NEW FUNCTIONALISM IN HISTORICAL PERSPECTIVE

A. Historical Functionalism

Comparative Constitutionalism builds on the longstanding func­tionalist approach to comparative law,20 in which the relevant unit of analysis is not a geographic entity, such as a country or region, but is rather the problem and its legal solution. For generations of compara-

17 See KONRAD ZWEIGERT & HEIN KOTZ, INTRODUCTION TO COMPARATIVE LAW 32-47 (Tony Weir trans., Oxford Univ. Press 3ded. 1998) (1977).

18 Id. at 34. l9 See id. at 36-40 (tracing the history of functionalism as it arose in private law); see also

ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW 6-9 (2d ed. 1993).

20 See ZWEIGERT & KOTZ, supra note 17, at 34; see also 0. Kahn-Freund, Comparative Law as an Academic Subject, 82 L.Q. REV. 40 (1966).

2004] BOOK REVIEW 2575

tivists - the postwar generation in particular functionalism was the preeminent approach to comparative law.21 As Rudolph Jhering notes, "The reception of foreign legal institutions is not a matter of na­tionality, but of usefulness and need. No one bothers to fetch a thing from afar when he has one as good or better at home, but only a fool would refuse quinine just because it didn't grow in his back garden."22

In the mid-nineteenth century, comparative law was considered the international science of problem solving, distinguished by a universal­izing method and epistemology. The comparative project promoted by the leading scholars in the field at the time, such as Rudolph Schlesinger and Konrad Kotz, focused on arriving at practical solu­tions. Indeed, the claim of comparative law - that it was the vehicle to legal truth - was even more ambitious:

[C]omparative law offers the only way by which law can become interna­tional and consequently a science. In the natural and medical sciences ... discoveries and opinions are exchanged internationally .... But the po­sition in legal science is astonishingly different .... Comparative law has started to put an end to such narrowmindedness. The primary aim of comparative law, as of all sciences, is knowledge.23

Moreover, comparativism's origins in private law24 rendered its subject matter easy to isolate from ambient politics.25 Although two world wars, ensuing treatymaking, and the law reform movement fu­eled the interest in comparativism,26 that interest would be short-lived and confined to discrete areas of the private law or to the immediate postconflict periods.27

B. The Advent of Neofunctionalism

Comparative Constitutionalism posits a return to the reigning postwar comparative method. Transcending functionalism's tradi-

21 See ZWEIGERT & KOTZ, supra note 17, at l5-2r. 22 See id. at l 7 (quoting Rudolph von Jhering) (internal quotation marks omitted); see also

Konrad Zweigert & Kurt Siehr, Jhering's Influence on the Development of Comparative Legal Method, 19 AM. J. COMP. L. 215, 215 (1971).

23 ZWEIGERT & KOTZ, supra note 17, at 15. 24 See id. at 59 (referring to the "Paris Congress of Comparative Law of 1900''); see also RU­

DOLPH B. SCHLESINGER, COMPARATIVE LAW: CASES, TEXT, MATERIALS 9 (6th ed. 1998) (noting nineteenth-century American use of French and Dutch authorities in the private law con­text).

25 For an elaboration of the private law origins and the facility of "transplant," see 0. Kahn­Freund, On the Uses and Misuses of Comparative Law, 37 MOD. L. REV. l, 16-17 (1974). For a critical discussion, see infra pp. 2581-83. See also David Kennedy, New Approaches to Compara­tive Law: Comparativism and International Governance, 1997 UTAH L. REV. 545, 599, 622-23 (1997). Comparativism's origins in private law can also be seen in the movement's beginnings in the United States. See ZWEIGERT & KOTZ, supra note 17, at 57.

26 See ZWEIGERT & KOTZ, supra note 17, at 5<)-62. 27 See id.

HARVARD LAW REVIEW [Vol. 117:2570

tional focus, Comparative Constitutionalism represents a sustained en­deavor to revive this approach - this time with respect to constitu­tional law (p. 3). Historically, functionalism assumed that legal prob­lems could simply be excised from their political context, a notion easy to sustain in private law. By contrast, the crux of neofunctionalism is the plausibility of the method's application to constitutional law - an area beyond its traditional purview.

Yet Comparative Constitutionalism never really grapples with the central question of its own purpose: how to justify extending the prin­ciples of functionalism to constitutional analysis. Instead, it presup­poses that functionalism is a proper approach (p. iv). 28 The editors as­sert: "Without regard to whether problems and solutions are essentially similar across different constitutional systems, one can maintain that there is a significant degree of congruence between problems and their possible solutions across the spectrum of contemporary constitutional democracy" (p. 8).29 But this notion appears to assume a shared un­derstanding of the aims of constitutionalism that has not yet emerged. In the absence of such a common normative constitutional vision across societies, it is not clear what it means to engage in the "func­tionalist pursuit."

Nonetheless, the functionalists downplay any differences among constitutional democracies. The editors characterize the functionalist aim as the comparative study of constitutional responses across cul­tures and the evaluation of constitutional decisions in their respective constitutional systems and cultures. But the editors always proceed with an eye toward convergence among systems: "Although these diffi­culties should not be overlooked,'' the editors resolutely maintain, "they can be adequately managed through proper consideration of signifi­cant contextual differences" (p. 3). One might see this as an enlight­ened version of functionalism that recognizes the constitutional experi­ences of diverse cultures. Ultimately, however, the editors' position is that the areas of agreement among constitutional democracies out­weigh the differences. At a minimum, their argument is for "a worka­ble overlap." In the area of basic rights, however, their contention is more sweeping; they posit a "widespread overlap - if not underlying universalism - at the core" (p. 3).30

28 The editors commit to presenting problems "generically." 29 For a discussion of the debate over how much convergence presently exists between com­

mon law and civil law systems, see Mathias Reimann, The Progress and Failure of Comparative Law in the Second Half of the Twentieth Century, 50 AM. J. COMP. L. 671, 690 n.109 (2002). Re­imann compares James Gordley's view that there is complete convergence with Pierre Legrand's opposite view. See id.

30 Some of these assertions may well be borne out. See infra section V.C.

2004] BOOK REVIEW 2577

In its quest to forge a transatlantic inquiry, Comparative Constitu­tionalism often pursues a formalist method removed from the actual problems faced by constitutional regimes. The rationale behind this approach is that abstracting legal problems across different cultures necessitates a high level of generality. However, as the editors concede, the apparent similarities in such a framework can be misleading (p. 4).31 This concession introduces doubts that go to the core of the func­tionalist project, as there is no prevailing agreement on the solutions to common constitutional problems. As a result, in adhering to the methodology of comparative legal science (p. iv), Comparative Consti­tutionalism abstracts problems from their particular contexts to arrive at a constitutionalism hardly identifiable with politics or place. The book's stated goal is to systematically offer a series of objective ac­counts of various constitutional systems with an eye toward evaluating the potential power of law. By focusing on a seemingly never-ending array of legal responses, the functionalist method attempts to show that law has affirmative potential. As Part V discusses, faith in the usefulness of functionalism, however overstated, may account for the current fashionableness of comparative constitutional adjudication.

Nevertheless, the ultimate issue at the heart of neofunctionalism is the relationship between the means and their ends. After all, this comparative project holds out the aspiration of defining a normative constitutionalism that is universal. The cumulative effect of a multi­plicity of constitutional experiences, the editors contend, can lay a foundation for universal science (pp. 8-10): "If there were a universal ideal of 'constitutionalism,' then all constitutions could be evaluated according to the same criteria. Moreover, consistent with the prescrip­tions of constitutionalism, one could determine in what respects all constitutions ought to be alike and in what respects they could legiti­mately differ. "32

This universalizing aim is manifest in the casebook's structure and its framing of the relevant problems, as well as in its other substantive choices. Avoiding the thickets of political realities, the casebook seeks to provide a culturally neutral, panoptic perspective on constitutional­ism. Its object is to "present[] issues generically" (p. iv), detached from constitutional particulars (p. iv).33 Abstracting the issues from their relevant contexts enables the editors to construct a constitutional ideal.

31 Dorsen and his coeditors note, for example, that comparativists may overestimate similari­ties for ideological reasons (p. 9) (citing Giinther Frankenberg, Stranger than Paradise: Identity and Politics in Comparative Law, 1997 UTAH L. REV. 259, 262-63).

32 DORSEN ET AL., TEACHER'S MANUAL TO ACCOMPANY COMPARATIVE CONSTI­TUTIONALISM: CASES AND MATERIALS l-3 (2003) [hereinafter TEACHER'S MANUAL].

33 See also id. at i (referring to the editors' effort to present issues "generically rather than as characterized in particular constitutional systems").

HARVARD LAW REVIEW [Vol. 117:2570

However, this endeavor seems paradoxical: if the aim of the function­alist project depends on the pursuit of an ideal constitutionalism con­structed largely by processes of abstraction, how can the editors pro­ceed to evaluate this normative good of constitutionalism outside a political and social context? The absence of an adequate definition of terms makes it difficult to address the normative questions raised here regarding the potential role of comparativism in constitution-making or constitutional interpretation. Furthermore, as is elaborated below, the functionalist approach to the definitional query is to abstract con­stitutional problems from their contexts. This approach does not pay adequate attention to the extent to which constitutional problems are informed by politics and culture.

III. METHODOLOGICAL PERSPECTIVES ON THE NEW FUNCTIONALISM

A. The Problem of Defining Constitutionalism: Methodological Consequences

Although Comparative Constitutionalism generally eschews an open discussion of methodology, the editors' approach is implicit in the framing of the various constitutional issues as well as in the casebook's attempt to abstract constitutional problems from their contexts.

The definitional problem is reflected in the casebook's introductory discussion of the foundational question, "What is a Constitution?" (pp. l-98), in which the editors define their subject matter. Dorsen and his coeditors reproduce Michel Rosenfeld 's taxonomy of four constitu­tional models: German, French, American, and Spanish (p. 42 ). Intro­duced as "prototypes" (p. 44), each of these four constitutional schemes reflects a different form of identity: the German, ethnos; the French, demos; the American, nation; the Spanish, a broader regional identity (p. 42 ). Although these models offer the promise of a constitutional norm, they are discussed only briefly. Evaluation of these diverse con­stitutional schemes is difficult in the absence of a normative constitu­tional vision. In any event, these are not overarching models intended to guide the structure of the book, as other models are similarly intro­duced elsewhere in the book (pp. 16-2 l, 72-87).34

The editors again take up the nature of constitutionalism in their discussion of "[c]onstitutions [b]eyond the [n]ation-[s]tate" (pp. 47-66). Here, the topic is how contemporary global transformation affects pre­vailing assumptions about a constitutional regime's nexus to the state

34 The book provides an excerpt addressing the relationship between constitutionalism and the rule of law and provides excerpts and discussion on four distinct models of constitution-making in modern history. See infra notes 49-50.

2004] BOOK REVIEW 2579

and spurs the rise of apparently independent transnational normative regimes. In the end, we are led to conclude that globalism brings con­tradictory consequences for comparative constitutional analysis: politi­cal centralization and decentralization; fragmentation and unifica­tion. 35 Consequences follow for new understandings of what constitutes a constitutional regime, as well as for the status and treat­ment of supranational constitutionalism. These developments in transnational constitutional regimes support an expanded rationale for comparative constitutional law.36 This does not escape Comparative Constitutionalism, which is poised at the forefront of these global changes. A chapter is devoted to the definition of a constitutional re­gime. The editors take a capacious view of the inquiry, considering transnational constitutional regimes like the European Human Rights Convention (pp. 47-66).37

Might political changes necessitate redefining the notion of a con­stitutional regime? Here, as always, the editors frame the relevant rule in terms of their broader operative approach: "The question is ... how they function. Do they - or can they - function as constitutions?" (p. 47) This inquiry, however, appears to assume an antecedent analytic conception regarding what a constitution is supposed to do. It fails to address the questions raised by constitutionalism's expansion beyond the nation-state, the juridical consequences of their analytical ap­proach, a recognition rule, or a cabining principle in comparative con­stitutional analysis (p. 4 7-71).

N eofunctionalism 's normative vision pervades the editors' framing of the constitutional issues. The chapter titled "Constitutional Guaran­tees of Democracy" (pp. 1267-1373) addresses those constitutional rights that relate to assuring democratic government. It endeavors to abstract the constitutional problem from its contextual factors in the hope of identifying best practices. The relevant issues are represented as timeless and universal. Consider the treatment of political parties in U.S. and European constitutional law. Although in the United States, except with respect to the First Amendment, political parties do

35 See Anne-Marie Slaughter, The Real New World Order, FOREIGN AFF., Sept.-Oct. 1997, at 183, 183-86 (describing the emergence of "transgovernmentalism," in which distinct institutions of the state disaggregate and network with their counterparts in other countries).

36 There is a substantial and growing literature on the changing nature of sovereignty. See, e.g., GLOBAL LAW WITHOUT A STATE (Gunther Teubner ed., 1997); HELD ET AL., supra note 3; SASKIA SASSEN, GLOBALIZATION AND ITS DISCONTENTS (1999). But see STEPHEN D. KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY (1999) (arguing against the notion that the nature of state sovereignty is changing).

37 The Supreme Court has also taken an expansive view of constitutionalism in recent deci­sions, invoking the European Court of Human Rights as representative of "western tradition." See infra pp. 2591-92. Strangely, this transnational regime is being invoked as a constitutional regime.

2580 HARVARD LAW REVIEW

not have special status under the Constitution,38 in Europe party poli­tics are subject to greater scrutiny and have more constitutional sig­nificance.39 Understanding the basis for these differences requires a consideration of the differences between the natures of presidential and parliamentary democracies. In the casebook's discussion of Ger­many's close constitutional review of political parties,40 known as "militant democracy,'' the editors assert that "the protection of democ­racy against its enemies is a matter that states confront at all times" (p. 12 76 ), suggesting that vigilance is essential to constitutionalism. Yet militant democracy is a distinct postwar response that is associated with a particular political and constitutional history and that assumes a normative take on constitutional democracy. The editors' inquiry does not address the relevance of values to constitutional protection of democracy or the extent to which "militant democracy" raises critical tradeoffs best understood in light of the unique features of a particular legal and political culture. Indeed, current events, such as the cam­paign against terrorism, render comparative analysis of constitutional­ism and democracy all the more relevant, giving rise to a demand for constitutional principles that are flexible enough to adapt to changing conditions.41 The politics of neofunctionalism is elaborated further in the next Part.

B. The Critical Legal Studies Perspective

Comparative Constitutionalism's methodology may be best under­stood in light of other perspectives on the field, notably critical legal theory.42 The Critical Legal Studies (CLS) critique focuses on the functionalist enterprise's method and aims and on whether constitu-

38 Most constitutional law casebooks include little or no mention of political parties. See, e.g., GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW (4th ed. 2003). On the constitutionali­zation of political parties, see Samuel Issacharoff, The Structures of Democratic Politics, roo COLUM. L. REV. 593, 593-97 (2000). See also KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW (14th ed. 2001).

39 See, e.g., GRUNDGESETZ [GG] [Constitution] art. 21 (F.R.G.). 40 Id. 1( 2. For a discussion of this article, see DONALD KOMMERS, THE CONSTITUTIONAL

JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 200-16 (2d ed. 1997). 4! Indeed, more than one Justice on the Court has suggested that the area of constitutional

rights relating to terrorism demands international cooperation and the study of comparative con­stitutionalism. See Justice Sandra Day O'Connor, Keynote Address Before the Ninety-Sixth An­nual Meeting of the American Society of International Law (Mar. 15, 2002), in 96 AM. Soc'Y INT'L L. PROC. 348, 349, 350 (2002); see also Terrorism and Civil Liberties, in GLOBAL CONSTITUTIONALISM: PRIVACY, PROPORTIONALITY, TERRORlSM AND CIVIL LIBERTIES (Paul Gewirtz & Jacob Katz Cogan eds., Supp. 2002); Terrorism: Detention, Judicial Responsibili­ties, in GLOBAL CONSTITUTIONALISM: TERRORISM, FREEDOM OF EXPRESSION, THE PROPOSED EUROPEAN CONSTITUTION (Paul Gewirtz & Jacob Katz Cogan eds., Supp. 2003).

42 For a discussion of critical legal theory in comparative law, see David Kennedy, supra note 25. For a general discussion of critical theory, see Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57 (1984).

2004] BOOK REVIEW

tional law can plausibly be conceptualized as a universal legal science. Although CLS, of course, has grounded its major methodological cri­tique in the area of private law,43 it is now extending these arguments to the area of constitutional law, which one might well expect to be even more dependent on politics. What is it that is being compared when the subject is an abstracted legal response? From the CLS per­spective, the functionalist project is of limited value because the func­tionalist comparative constitutional analysis tends to elide political, economic, and social realities in its quest to identify legal regimes that can be transplanted across national lines.44

Although in the neofunctionalist account comparative constitu­tional law is treated as a mechanism that is amenable to independent study, the CLS critique would instead give a narrative about a consti­tutional law that is deeply contingent upon political, historical, social, and economic realities. In this regard, one might contrast the ap­proach pursued in another recent casebook, Comparative Constitu­tional Law,45 in which Vicki Jackson and Mark Tushnet seek to ac­count for historical and political context46 and, more particularly, for the politics of democratic transformation.47 While Dorsen et al. 's neo­functionalist logic is timeless and universal,48 for Jackson and Tushnet the relevant inquiry is historical and political.49 From the perspective of a hermeneutics associated with political, historical, and cultural con­tingency, the critical theory critique better accounts for constitutional­ism 's changing and particular dimensions, questioning whether transcultural comparativism is even possible and challenging function­alism's emphasis on constitutionalism in common.

The parts of the book discussed below address questions about con­stitutionmaking, the allocation of government power, and constitution­alism 's relation to the rule of law and democracy. In their section ti­tled "Constitution-Making in Historical Perspective" (pp. 72-88), Dorsen and his coeditors survey the constitutional phenomena across world history, proposing "four different models of constitution-making

43 See, e.g., Morton Horwitz, THE TRANSFORMATION OF AMERICAN LAW: 1860-1960 (1992); Duncan Kennedy, Form and Substance in Private Law Adjudication, 79 HARV. L. REV. 1685 (1976).

44 See, e.g., Gilnther Frankenberg, Critical Comparisons: Re-thinking Comparative Law, 26 HARV. INT'L L.J. 41 l, 440 (1985).

45 JACKSON & TUSHNET, supra note 4, at 182-89. 46 See id. at 251-354. 47 For a discussion of the law and politics of democratic transformation, see, for example,

RUTI G. TEITEL, TRANSITIONAL JUSTICE (2000). See also JACKSON & TUSHNET, supra note 4, at 25 l-356.

48 See supra pp. 2577-78. 49 See JACKSON & TUSHNET, supra note 4, at 182-89. On practices of self-reflection in

comparative analysis, see Frankenberg, supra note 44, at 441-43.

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[that] have emerged since the eighteenth century": a model associated with violent revolution; a second model associated with postwar for­eign occupation; a third model associated with peaceful transition from authoritarianism to democracy; and a fourth model associated with postcolonial nation-building (pp. 72-73). Although the models appear to be structured according to political provenance, in the recent wave of political transitions, constitution-making processes have become more complex, and have affected functionalism's capacity to abstract constitution-making processes from myriad political and historical fac­tors. It is unclear how this analytical framework can help guide con­temporary constitutional projects, such as those in Afghanistan or Iraq.

In recent decades, rapid political change has spawned new areas of study and stirred related comparative constitutionalism to vital de­bates regarding the role of the law in political transformation. 50 These developments raise questions regarding constitutionalism 's relation to political change. Whereas the neofunctionalist approach tends to un­derstate the significance of political change, the critical approach may well overstate the significance of such developments. While Dorsen and his coeditors seek to abstract, Jackson and Tushnet endeavor to situate various constitutional problems in their animating political circumstances.51 As such, Jackson and Tushnet devote large portions of their casebook to the exploration of constitutional law in periods of political transformation,52 such as postwar and post-Cold War constitutionalism. 53

C. Illustrations

The two casebooks' discussions of foundational issues, such as con­stitutional law's normative relation to the rule of law and democracy, highlights their difference methodologies. Following the functionalist approach, Dorsen and his coeditors endeavor to systematize the rela­tionship by proposing three models: German, French, and Anglo­American, each reflecting a distinct understanding of the rule of law (pp. 16-21). For example, to elucidate the German "Rechtsstaat" law-based approach, the editors juxtapose a leading Hungarian

so See TEITEL, supra not~ 47, at 3-9. SI JACKSON & TUSHNET, supra note 4, at 334-56. s2 See id. at 251-356. For an analysis of transitional constitutionalisrn, see TEITEL, supra

note 47, at 191-21r. SJ For a discussion of post-World War II constitution-making, see CONSTITUTIONALISM

AND RIGHTS: THE INFLUENCE OF THE UNITED STATES CONSTITUTION ABROAD 225-59 (Louis Henkin & Albert J. Rosenthal eds., 1990). For a discussion of post-Cold War constitution­alisrn, see Ruti Teitel, Post-Communist Constitutionalism: A Transitional Perspective, 26 COL UM. HUM. RTS. L. REV. 167 (1994).

2004) BOOK REVIEW

constitutional court decision establishing that country's foundational rule of law (p. 21-28). But the models alone cannot fully explain the bases for the divergent constitutional court decisions, which strike varying balances of the relative rule-of-law values of foreseeability and fairness. Jackson and Tushnet's discussion of the same question incor­porates historical materials and commentary regarding the rule of law's more political dimensions; this approach helps to show the extent to which the construction of legality - particularly in transitional con­stitutionalism - is both contingent and determinate.s4 Jackson and Tushnet's analysis elucidates that the rule of law involves a balance of values, often constituting transformative responses to prior illegality. ss Neofunctionalism helps to understand the affinities in comparative le­gal phenomena, while CLS helps to understand the differences.

One might also compare these divergent approaches by looking to their respective treatment of the separation of governmental powers within the broader political arrangement. In reflecting upon institu­tional structures in constitutional arrangements, Comparative Constitu­tionalism incorporates an extraordinarily comprehensive discussion of the separation of powers in parliamentary and presidential democra­cies (pp. 2 12-349). Still, evaluation of constitutional developments re­garding the separation of powers necessitates more attention to the his­torical and political context. By including the particular political, economic, and social conditions, the critical perspective better explains the present allocation-of-powers phenomena, such as presidentialism's renaissance, and their risks for democracy.s6

D. The Limitations of the Critical Legal Studies Approach

While appealing in some respects, the CLS critique too has its dis­tinct limits. Although it is often framed as universally applicable, the CLS insight is not equally apposite in all contexts.s 7 Indeed, the criti­cal approach is most relevant to moments of political transformation when it illuminates the law and politics of constitutional foundings and transitions. Contributing the additional political context helps to reveal the contradictions in the enterprise. Beyond these circum­stances, however, the approach does not appropriately account for ar-

54 See JACKSON & TUSHNET, supra note 4, at 334-56. 55 For discussion of this legal phenomenon, see Ruti Teitel, Paradoxes in the Revolution of the

Rule of Law, 19 YALE]. INT'L L. 239 (1994). 56 See Alfred Stepan & Cindy Skach, Presidentialism and Parliamentarism in Comparative

Perspective, in THE FAILURE OF PRESIDENTIAL DEMOCRACY 119, 120 Guan]. Linz & Arturo Valenzuela eds., 1994) (analyzing and cautioning against the rise of the presidential regimes with reference to the various historical, political, and economic forces in play).

57 See, e.g., Frankenberg, supra note 44.

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eas of constitutional affinity and consensus, and therefore can offer only a limited theory of comparative constitutional interpretation.58

The CLS critique of neofunctionalism transcends politics because the criticism goes to the central universalizing aims of this ambitious comparative constitutional project.59 Whereas the critique goes to the likely illegitimacy of a constitutional law extending beyond political parameters, functionalism's universalizing dimension has nevertheless garnered support from recent globalizing political changes that have invigorated the present interest in transnational constitutionalism.

IV. THE DIALOGICAL APPROACH

A. Global Challenges

Globalization is now spurring an alternate theory of comparative law andpolitics that endeavors to account for the processes of constitu­tional change with reference to present political realities. Recent glob­alizing changes have affected the very basis for juridical identity and subjectivity in the transnational sphere, with attendant consequences for comparative practices.

B. Comparative Constitutionalism as Discourse

Comparative Constitutionalism depends upon the notion of a uni­versal constitutional ideal that presently lies beyond constitutional re­alities. As discussed below, however, neofunctionalist logic does not offer a way to fully elucidate normative constitutional evolution.

In the present context of a globalizing politics, a new approach, here characterized as the "dialogical" perspective,60 offers such a strat­egy by theorizing comparative constitutionalism as a dynamic interpre-

58 For compelling critical analysis in comparativism, see Kennedy, supra note 25; and Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 YALE L.J. 1225 (1999).

59 See, e.g., Frankenberg, supra note 31; Kennedy supra note 25. The challenge to universal comparative law, however, is not confined to CLS. See George P. Fletcher, The Universal and the Particular in Legal Discourse, 1987 BYU L. REV. 335; Mary Ann Glendon, Rights in Twentieth­Century Constitutions, 59 U. CHI. L. REV. 519, 535 (1992). Even where problems appear similar, legal solutions differ due to societal context. See MARY ANN GLENDON ET AL., COMPARATIVE LEGAL TRADITIONS IO (2d ed. 1994). For a related formulation of the criti­cism, see Klaus Gunther, Legal Pluralism and the Universal Code of Legality: Globalisation as a Problem of Legal Theory (n.d.), available at http://www.law.nyu.edu/clppt/program2003/readings/ gunther.pdf.

60 See HELD ET AL., supra note 3, at 49-52 (asserting that the leading exponents come from international legal studies and aimed at international order). See generally David Kennedy, supra note 25, at 581; Koh, supra note ro (discussing the relationship between transnational legal proc­ess and international relations); Anne-Marie Slaughter, Judicial Globalization, 40 VA. J. INT'L L. r 103 (2000) (discussing the implications of a globalizing self-conscious judiciary on international and national politics).

2004] BOOK REVIEW

tive and discursive practice.61 Identified closely with the most recent wave of constitutional reforms, and the attendant expansion of consti­tutional review,62 this view of a contemporary transnational constitu­tional regime offers an alternative basis from which to justify com­parativism that is grounded in the processes of judicial review.63 This theory suggests that comparative constitutionalism practices can be le­gitimated by the prestige of other judiciaries,64 particularly the new constitutional courts.65 The force of this normative vision is borne out by the heightened judicialization66 in countries that either lacked judi­cial institutions with legitimacy67 or lacked institutions of judicial re­view altogether.6s

Whereas the neofunctionalist approach focuses on the constitu­tional problem and its solution, the dialogical approach focuses on the processes of constitutional interpretation (p. 207).69 Although in the

61 See, e.g., Anne-Marie Slaughter, A Global Community of Courts, 44 HARV. INT'L L.J. 191, 192--<)4 (2003) [hereinafter Slaughter, A Global Community of Courts]; Slaughter, supra note 60, at 1104. Related to this dynamic, communicative approach, is the idea that law has been viewed as a form of rhetoric th.it is "the central art ... transformed." James Boyd White, Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life, 52 U. CHI. L. REV. 684, 684 (1985). There are several prominent examples of a discursive approach to constitutional law. See, e.g., PAUL BREST & SANFORD LEVINSON, PROCESSES OF CONSTITUTIONAL DECISIONMAKING: CASES AND MATERIALS (3d ed. 1992); JORGEN HABERMAS, 1 THE THEORY OF COMMUNICATIVE ACTION: REASON AND THE RATIONALIZATION OF SOCIETY (Thomas McCarthy trans., Beacon Press 1994) (1981); ROBERT C. POST, CONSTITUTIONAL DOMAINS: DEMOCRACY, COMMUNITY, MANAGEMENT (1995); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993).

62 See Teitel, supra note 1, at 169 ("The post-communist constitutional courts point to a form of judicial review that is actively involved in delimiting the lawmaking of the new states.").

63 See Slaughter, A Global Community of Courts, supra note 61, at 194-<)6 (2003) (referring to "dialogue" and the emergence of "a community of courts").

64 On judicial theory generally, see MARTIN SHAPIRO, COURTS: A COMPARATIVE AND POLITICAL ANALYSIS (1981). On comparative judicial review, see A.R. BREWER-CARIAS, JUDICIAL REVIEW IN COMPARATIVE LAW (1989); and MAURO CAPPELLETTI, THE JUDICIAL PROCESS IN COMPARATIVE PERSPECTIVE (Paul J. Kollmer ed., 1996).

65 See, e.g., Teitel, supra note 1, at 186-87. 66 The courts have, for example, taken on a major role in addressing the political implications

of joining the European Union. See, e.g., Maastricht Treaty Case, 89 BVerfGE (1993) (challenging the constitutionality of Germany's participation in the European Union in Germany's Federal Constitutional Court). Germany's Federal Constitutional Court arguably has a history of address­ing such issues. See Southwest Case, 1 BVerfGE 14 (1951) (addressing the sovereignty of states in postwar Germany); see also KOMMERS, supra note 40, at 50-57, 108-09; Teitel, supra note 1, at 182-90. The notion of what is a political question is itself controversial and contingent.

67 See TEITEL, supra note 47, at 22-26; Teitel, supra note 55 (discussing the difficulties faced by developing judiciaries in countries previously lacking judicial legitimacy).

68 See KOMMERS, supra note 40, at 4-7 (discussing the history of constitutional review and judicial review in Germany).

69 Anne-Marie Slaughter and Harold Koh are leading proponents of this dialogical view. See Harold Hongju Koh, On American Exceptionalism, 55 STAN. L. REV. 1479, 1502, 1512-14 (2003) (defining "transnational legal process" and proposing that legal interpretations should be sought

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functionalist view there are fixed paths of adjudicatory development, in the discursive view there is no necessary directionality. Instead, what is contemplated is a move from diffusion and reception to dia­logue - from the transfer of foreign law to an active engagement with it. 7° Comparative exchange is not bound in path-dependent or hierar­chic ways. Rather, it poses a comity-based71 "transjudicial[]" enter­prise72 - a decentered view of constitutional practices73 deriving from pluralist sources, with the possibility of "cross fertilization."74

C. Dialogism and Constitutional Change

Dialogism makes an ambitious argument in favor of normative comparative constitutionalism.75 In the dialogical conception, com­parative practices in judicial review offer a dynamic process apt to producing constitutional change. Most significantly, this view contem­plates a way to constitutional evolution that is potentially independent of politics. 76

Following the dialogical approach, the potential for comparative constitutional analysis goes beyond its uses in domestic constitutional adjudication. When engaged in by a transnational judiciary, compara­tivism offers the potential for global solidarity: 77 the concerted turn outward enables alternative justifications to form the basis of princi­pled decisionmaking.78 Through pluralizing rationales, comparativism

on a global rather than exclusively domestic basis); Slaughter, A Global Community of Courts, su­pra note 6 l; see also Slaughter, supra note 60.

70 See Slaughter, A Global Community of Courts, supra note 61, at 196. 71 See id. at 194 (arguing for an evolving doctrine of "judicial comity'); see also Slaughter,

supra note 60, at l l l 2.

72 See O'Connor, supra note 41, at 350. 73 See Jiirgen Habermas, Interpreting the Fall of a Monument, 4 GERMAN L.J. 701, 707-08

(2003) (arguing for judicial and other reciprocity to advance cosmopolitanism). 74 See Slaughter, A Global Community of Courts, supra note 61, at 193· To some extent, the

discourse harkens back to earlier comparativist scientizing. See, e.g., Zweigert & Siehr, supra note 22.

75 On the proposed link between discourse and solidarity, see Jiirgen Habermas, Justice and Solidarity: On the Discussion Concerning Stage 6, in THE MORAL DOMAIN: ESSAYS IN THE ONGOING DISCUSSION BETWEEN PHILOSOPHY AND THE SOCIAL SCIENCES 224, 243-49 (Thomas E. Wren ed., 1990). See also Fletcher, supra note 59; Glendon, supra note 59, at 519-20.

76 This approach, in contrast to that of CLS, emphasizes the juridical rather than the political or economic basis for comparative exchange.

77 See Slaughter, A Global Community of Courts, supra note 61, at 218-19 (noting that trans­national adjudication can contribute to a "global community of courts').

78 For example, consider reliance on cosmopolitan law, defined as "those elements of law -albeit created by states - which create powers and constraints, and rights and duties, which transcend the claims of nation-states and which have far-reaching national consequences." HELD ET AL., supra note 3, at 70. The cosmopolitan project attempts to specify the principles and insti­tutions for making sites and forms of power, which presently lie beyond the scope of state democ­ratic processes. See id. at 449-50. See generally Jeremy Waldron, Minority Cultures and the Cosmopolitan Alternative, 25 U. MICH. J.L. REF. 751 (1992). For a related claim that proposes

2004] BOOK REVIEW

in judicial review offers potential cosmopolitan effects that may well transcend any individual state. Although this view derives some sup­port from the significant contemporary increase in the use of compara­tive analysis in domestic constitutional courts, as discussed below, this globalizing potential is most evident in the area of human rights - an area that is by nature transnational.

V. THEORIZING COMPARATIVE CONSTITUTIONAL INTERPRETATION

A. Constitutional Continua

Comparative Constitutionalism makes an ambitious claim for com­parative analysis's relevance to a wide range of constitutional prob­lems. While contemporary constitutional adjudication gives some support to the functionalist assumptions, the comparativist role in con­stitutional interpretation is more circumscribed, and is best rational­ized in terms of practices in conditions analogous to those of constitu­tional change, primarily involving discrete areas of unsettled law. 79

Foreign authority's dynamic influence, it is contended, can be best un­derstood along a continuum of constitutional development. Here, a functionalist understanding of comparativist practices is most apt: it is a mode of analysis offering alternative bases for the resolution of con­stitutional issues, but limited to particular conditions of legal change.

Foreign sources are at their most persuasive in distinct periods as­sociated with heightened political transformation. In the United States, as in other countries, comparative practices are demonstrably associated with various stages of normative transformation in founda­tional periods of nation-building and consolidation. Thus, the Ameri­can constitutional tradition has been subject to the influence of foreign law in varying degrees in various periods of political and juridical transformation.80 Reflection on how American constitutional practices

judicial review modeling democratic self-determination, see Frank I. Michelman, The Supreme Court, I985 Term-Foreword: Traces of Self-Government, 100 HARV. L. REV. 4, 74-77 (1986).

79 For example, the U.S. Supreme Court reversed itself on the constitutionality of the death penalty. Compare Furman v. Georgia, 408 U.S. 238 (1972) (holding that the death penalty as then applied in the United States was unconstitutional because of unguided jury discretion), with Gregg v. Georgia, 428 U.S. 153 (1976) (upholding some degree of jury discretion in capital sen­tencing).

BO See Edward S. Corwin, The "Higher Law" Background of American Constitutional Law (pts. 1 & 2), 42 HARV. L. REV. 149, 365 (1928) (suggesting that judicial processes model fledgling integration); cf Suzanna Sherry, The Founders' Unwritten Constitution, 54 U. CHI. L. REV. 1127, 1135-46, 1177 (1987) (noting that the practice of referring to foreign law, normally imperial char­ters, the "law of nations,'' and national law as a component of judicial review predates constitu­tional law).

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have changed over the years reveals a circumscribed role for compara­tive analysis at dynamic junctures in the legal order.

Potential guiding principles regarding the influence of comparative law in American constitutional doctrine can be located along a consti­tutional timeline. First, Justices are willing to integrate foreign sources when comparativism goes to constitution-making, rather than constitu­tional interpretation, as there is a conceded legitimacy to preconstitu­tional consultations.Bi Thus, in Justice Scalia's words, "comparative analysis [is] inappropriate to the task of interpreting a constitution, though it [is] of course quite relevant to the task of writing one."B2

Once there is constitutional supersession, the normative question concerning the legitimacy and authority of comparativist analysis is subsumed within the broader question concerning constitutional inter­pretation. As part of this more general inquiry, comparative constitu­tionalism ought to be reconcilable with originalist principles of judicial review. For long stretches of legal history, comparativist practices were noncontroversial, as such experience was readily associated with common law tradition.B3 From its inception, the colonial judiciary re­ferred to English law, Norman law, and other classical influences.B4

Historically, the very idea of "higher" law was informed by interna­tional and foreign sources.BS Comparative constitutionalism interro­gated foreign mores as a step in the pursuit of universal morality.

8! See Stanford v. Kentucky, 492 U.S. 361, 369 n.1 (1989) ("We emphasize that [when inter­preting the Eighth Amendment] it is American conceptions of decency that are dispositive, reject­ing the contention ... that the sentencing practices of other countries are relevant.").

8Z Printz v. United States, 521 U.S. 898, 921 n.11 (1997). There may be important methodo­logical differences between the ways in which common law and civil law jurisdictions treat for­eign sources. For example, South Africa, a common law jurisdiction, offers a current comparative constitutional jurisprudence of a young, scarcely interpreted constitution. The constitution itself draws its attention to foreign sources. See S. AFR. CONST. § 39(1)(c). Thus, South African courts more readily appeal to foreign sources. See, e.g., S v. Makwanyane, 1995 (3) SALR 391 (CC), 51g-20 (Sachs, J., concurring) ("Germany after Nazism, Italy after facism, and Portugal, Peru, Nicara­gua, Brazil, Argentina, the Philippines and Spain all abolished capital punishment for peacetime offenses .... It is not unreasonable to think that similar considerations influenced the framers of our Constitution as well.').

83 See THE FEDERALIST Nos. 18-20 Games Madison); see also THE FEDERALIST No. 63, at 425-30 Games Madison), Nos. 67, 69, 83, 84, at 452-53, 463-65, 568, 577-78 (Alexander Ham­ilton) Gacob E. Cooke ed., 1961) (referring to foreign constitutional precedents); JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION (1996).

84 See WATSON, supra note 19, at 65-70 (discussing the early law of the Massachusetts Bay Colony).

85 See ZWEIGERT & KOTZ, supra note 17, at 57-59. Indeed, the notion of universal rights, as a matter of higher law, underlies the theory of international law. Thus, it is informative to con­sider the link between comparative constitutional law and the sources of international law. See Statute of the International Court of Justice, June 26, 1945, art. 38(1)(b), 59 Stat. 1055, 1060 (pro­viding that international custom offers evidence of a general practice accepted as law).

2004] BOOK REVIEW

Moreover, comparative analysis allowed states to move beyond in­digenous law in pursuit of legal transformation. This is evident, for example, in the post-Reconstruction and New Deal United States, when constitutional interpretation relied on comparativism for defin­ing and consolidating national standards.86 The relevant inquiry dur­ing these periods was whether the right at issue was a "fundamental principle of liberty and justice which inheres in the very idea of free government."87 Although the invocation of foreign standards in rights inquiries dislodged the sense of complete autonomy associated with na­tional law, it did not necessarily move constitutional doctrine in a rights-expanding direction.88 Nevertheless, this stage of national legal consolidation illuminates the potential of comparative constitutional law to play a dynamic role in the development of national standards.

At present, in a period of change toward a singular global order, the potential normative role of comparative constitutional law is tak­ing on new urgency.89 The U.S. Supreme Court is engaging more often with foreign sources in constitutional interpretation.90 A consensus appears to be forming regarding the relevance of foreign sources, at

86 See, e.g., Trop v. Dulles, 356 U.S. 86, 102 & n.35, 103 (1958) (referring to the "virtual una­nimity" of "[t]he civilized nations of the world'); Palko v. Connecticut, 302 U.S. 319, 326 n.3 (193 7) (comparing the protection against self-incrimination in the United States to that in continental Europe); Twining v. New Jersey, 2 II U.S. 78 (1908).

87 Twining, 2 II U.S. at 106. 88 For example, analogies to foreign law would sometimes work against the incorporation of

national standards. For a probing analysis of this "flexible-natural law" interpretive approach, see Sanford H. Kadish, Methodology and Criteria in Due Process Adjudication - A Survey and Criticism, 66 YALE L.J. 319 (1957).

89 See Thompson v. Oklahoma, 487 U.S. 815, 830-31 (1988) (plurality opinion) (noting a con­sensus regarding imposition of the death penalty on minors among "nations that share our Anglo­American Heritage''). Compare Lawrence v. Texas, 123 S. Ct. 2472, 2481 (2003) (describing a case in which the European Court of Human Rights held that a law prohibiting consensual homosex­ual conduct violated European law), Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002) ("[W]ithin the world community, imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.''), and Stanford v. Kentucky, 492 U.S. 361, 390 (1988) (Brennan, J., dissenting) ("Within the world community, the imposition of the death penalty for juvenile crimes appears to be overwhelmingly disapproved."), with Lawrence, 123 S. Ct. at 2495 (Scalia, J., dissenting) (dismissing the Court's discussion of foreign views as "meaningless dicta"), Atkins, 536 U.S. at 324-25 (Rehnquist, C.J., dissenting) (asserting irrelevance of "the views of other countries regarding the punishment of their citizens"), and Stanford, 492 U.S. at 369 n.1 ("We emphasize that it is American conceptions of decency that are dispositive, rejecting the contention ... that the sentencing practices of other countries are relevant.").

90 See cases cited supra note 8; see also Printz v. United States, 521 U.S. 898, 921 n.II (1997) (noting that "comparative analysis [is] inappropriate to the task of interpreting a constitution, though it was of course quite relevant to the task of writing one"). Although this debate is taking place now, this is certainly not the first time the Court has engaged in comparative analysis in constitutional adjudication. Foreign materials were used at the founding of the United States and also at other times of national unification and political flux. See infra pp. 2591-92.

2590 HARVARD LAW REVIEW [Vol. np570

least within circumscribed parameters.91 The justification for com­parativist analysis is couched largely in functionalist terms: as a basis for the resolution of specific constitutional issues, particularly in areas of unsettled law. Seven years ago, Justice O'Connor asserted that "[o]ther legal systems continue to innovate, to experiment, and to find new solutions to the new legal problems that arise each day, from which we can learn and benefit."92 More recently, she noted, "[w]hile ultimately we must bear responsibility for interpreting our own laws, there is much to learn from other distinguished jurists who have given thought to the same difficult issues that we face here."93 She added in a speech this year, "I suspect that over time, we will rely increasingly - or take notice at least increasingly - [of] international and foreign law in resolving domestic issues."94

Similarly, Justice Breyer has described the value of comparative constitutionalism as dealing primarily with "open questions": "[W]e face an increasing number of ... constitutional issues, where the deci­sions of foreign courts help by offering points of comparison."95 In a recent decision concerning federalist structures, Justice Breyer advo­cated the use of comparative material where "other countries [face] the same basic problem."96 He acknowledged that "there may be relevant political and structural differences between their systems and our own," but argued that "[t]heir experience may nonetheless cast an em­pirical light on the consequences of different solutions to a common le­gal problem."97 In both rhetoric and opinions, the current Court in­creasingly relies upon the functionalist rationale for its growing comparative constitutional jurisprudence.

B. Comparative Practices -Adjudicatory Constraints

Comparative analysis in constitutional adjudication has distinct pa­rameters - it is not unbounded. Nonetheless, functionalism appears

9l See infra notes u8-132 and accompanying text. One common scenario for reliance on for­eign law is during periods of political transformation. On constitutional moments, see 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 345-82 (1998), which affirms the role of constitutional interpretation in constitutional transformation. For a gradualist view, see Ruti Teitel, Transitional Jurisprudence: The Role of Law in Political Transformation, 106 YALE L.J. 2009 (1997).

92 Sandra Day O'Connor, Broadening Our Horizons: Why American Judges and Lawyers Must Learn About Foreign Law, INT'L JUD. OBSERVER, June 1997, at 2.

93 O'Connor, supra note 41, at 350. 94 See Jonathan Ringel, O'Connor Speech Puts Foreign Law Center Stage, FULTON COUNTY

DAILY REP., Oct. 31, 2003, http://www.Iaw.com/jsp/article.jsp?id=1067350962318. 95 See Justice Stephen Breyer, Keynote Address Before the Ninety-Seventh Annual Meeting

of the American Society of International Law (Apr. 4, 2003), in 97 AM. SOC'Y INT'L L. PROC. 265, 266 (2003).

96 Printz v. United States, 52 l U.S. 898, 976 (1996) (Breyer,]., dissenting). 97 Id. at 976-n.

2004] BOOK REVIEW 2591

to explain well the force of comparative constitutionalism in a common law system. With the constitutional problem front and center, func­tionalism is a useful device aiding judicial activism in the comparativ­ist enterprise.98 Moreover, as is elaborated below, the method has its roots in American constitutional tradition.

Adjudicatory practices illuminate political structures and a trans­national nexus. In the American constitutional context, the adjudica­tory structure itself suggests the limits on (or parameters of) foreign au­thority. The reasons may well hearken back to the differences in legal cultures that fuel comparative legal science.99 In the United States, the relative willingness to look at foreign materials appears to depend less upon judicial philosophy100 than upon factors that relate to case law and its parameters.10 1

Prevailing adjudicatory practices, particularly in the Supreme Court, reflect the distinct parameters of the comparative enterprise. The turn outward to foreign law reveals alternative operating princi­ples, proxies for the usual nation-bound bases for judicial review. There is always a nexus between the domestic and foreign authorities being compared, whether it is couched in terms of legal culture or po­litical tradition. 102 For the first half of the twentieth century, in U.S. constitutional jurisprudence, the relevant nexus was defined on the ba­sis of a community of language, notably of "English-speaking na­tions."103 This principle was ultimately abandoned, however, because it lacked meaningful parameters. 104

98 Thus, Justice Breyer has referred to the judiciary's instrumentalization in the evolution of human rights law. Breyer, supra note 95, at 266 (referring to independent judiciaries as instru­ments to implement human rights law).

99 See BREWER-CARIAS, supra note 64 (discussing varying approaches to judicial review); see also CAPPELLETTI, supra note 64.

100 See Printz, 52 l U.S. at 9i6-i8 (Breyer, J., dissenting) (employing functionalist considera­tions to advocate a comparative analysis). Indeed, comparativists on the court are generally iden­tified by their pragmatic, case-by-case methodology. See, e.g., Lawrence v. Texas, 123 S. Ct. 2472, 2483 (2003).

101 See Printz, 52 l U.S. at 92 l n.11. 102 See, e.g., Knight v. State, 721 So. 2d 28 (Fla. 1998), cert. denied, 528 U.S. 990, 995-97 (1999)

(Breyer, J., dissenting from denial of certiorari) (referring to court rulings in Great Britain, Ja­maica, India, Zimbabwe, and Canada - all part of the Anglo-American common law tradition).

103 See, e.g., Poe v. Ullman, 367 U.S. 497, 548 (1961) (Harlan, J., dissenting) (arguing that the regulation at issue "involves what, by common understanding throughout the English-speaking world, must be granted to be a most fundamental aspect of 'liberty"'); Wolf v. Colorado, 338 U.S. 25, 28 (1949) (referring to "the history and basic constitutional documents of English-speaking peoples"); Malinski v. New York, 324 U.S. 401, 413-14 (1945) (interpreting due process in light of the history of freedom of English-speaking peoples); Otis v. Parker, 187 U.S. 606, 609 (1903) (re­ferring to constitutions as "generally understood by all English-speaking communities").

104 See Rochin v. California, 342 U.S. 165, 176 (1952) (Black, J., concurring) (questioning a limit to "English-speaking" peoples).

2592 HARVARD LAW REVIEW [Vol. n7:2570

Modern authority's limiting condition derives from the "common law" or "Anglo-American heritage,''105 drawing from historical inquiry into preconstitutional traditions. 106 The relevant constitutional pa­rameters regarding foreign sources are commonly grounded in political cultures that are, in particular, "democracy-based."107 Indeed, the cur­rent reliance on the jurisprudence of the European Court of Human Rights is exemplary,108 harking back to historical understandings of unified law on the continent. This trend peaked in last Term's Law­rence v. Texas opinion, 109 which invoked European Court of Human Rights rulings and western tradition to discredit Bowers v. Hard­wick.110 In such cases, the comparativism is bounded by functional lines.

C. Comparativism in Human Rights as Global Rule of Law

Comparative Constitutionalism, as discussed above, sets out the goal of universal constitutionalism.111 The editors conceive of com­parative analysis in terms of a timeless legal convergence, systematiz­ing broadly across cultures and world history (p.10). Although this understanding of the direction of legal integration is a theoretical

105 See Knight, 528 U.S. at 995--97 (Breyer, J., dissenting); Thompson v. Oklahoma, 487 U.S. 815, 830 (1988) (plurality opinion) (relying on "nations that share our Anglo-American heritage"); Adamson v. California, 332 U.S. 46, 54 (1947) (regarding "Anglo-American legal tradition" as the basis for the relevant connection). In the lower courts, this following of Anglo-American juris­prudence reflects adherence to a system of binding authority, while in the Supreme Court, such common law norms reflect a broader concern for remaining within the legal tradition.

106 See, e.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 952-53 (1992) (Rehnquist, C.J., concurring in the judgment in part and dissenting in part) (noting that "the his­torical traditions of the American people" began with "[t]he common law which we inherited from England"); Stanford v. Kentucky, 492 U.S. 361, 368 (1989) (justifying the American law as in "ac­cordance with the standards of this common-law tradition"); Duncan v. Louisiana, 391 U.S. 145, 149 n.14 (1968) (questioning "whether ... a procedure is necessary to an Anglo-American regime of ordered liberty"); Trop v. Dulles, 356 U.S. 86, 9g-100 (1958) (noting that the constitutional idea of "due process" began with the English Declaration of Rights of 1688 and the Magna Carta).

107 See, e.g., Lawrence v. Texas, 123 S. Ct. 2472, 2481 (2003) (discrediting Bowers v. Hardwick, 478 U.S. 186 (1986), in part by showing that Bowers was at odds with a European Court of Hu­man Rights case that is binding upon forty-five western nations); Washington v. Glucksberg, 521 U.S. 702, 710 (1997) (referring to the crime of assisted suicide "in almost every western democ­racy"); Mcintyre v. Ohio Elections Comm'n, 514 U.S. 334, 381 (1995) (Scalia, J., dissenting) (refer­ring to "foreign democracies'); Stanford, 492 U.S. at 389--<)o (Brennan, J., dissenting) (noting that prior Supreme Court cases have held that objective indicators of contemporary standards of de­cency in the form of legislation in other western countries are relevant to Eighth Amendment analysis).

108 See, e.g., Lawrence, l 23 S. Ct. at 2481, 2483 (citing the decisions of the European Court of Human Rights); see also Thompson, 487 U.S. at 830 (considering the views of "leading members of the Western European Community').

109 123 S. Ct. 2472 (2003). 110 See id. at 2483 (relying on Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. 52 (1981)). 111 See supra pp. 2576-77.

2004] BOOK REVIEW 2593

ideal, 112 in reality, this integration is more limited, and it is demonstra­bly negotiated at the juncture of law, politics, and culture.113 Insofar as there is contemporary movement toward constitutional conver­gence, the movement occurs primarily in the area of international hu­man rights, which one might characterize as the "law of humanity."

Comparative Constitutionalism points us in the direction of height­ened convergence in the law in distinct areas, perhaps the most robust being transnational human rights law. Peremptory norms, elucidated in and by comparative law, structure a threshold rule of law across na­tions that operates as an unwritten constitutional regime for a global order. Substantial agreement among national constitutions and con­formity with international conventions (p. 3) demonstrate a consensus on basic human rights114 and on the importance of protecting de­cency115 and integrity. 11 6

From these data points one might infer a limited universal "law of humanity," the culmination of comparativism. 117 "Humanity rights" are pivotal in the present globalizing regime, which is distinguished by interdependence but not integration. Comparative constitutional law's current extension, therefore, offers an alternative conception of legiti­macy, grounded in core human rights and aimed at reinforcing the nascent global order.

From this realm of threshold human rights, comparative constitu­tionalism is now extending its quest for conformity into the sphere of due process. 118 The phenomenon is most evident in developments within criminal procedure. In a chapter devoted to "Criminal Proce-

112 "Constitutionalism is an ideal that may be more or less approximated by different types of constitutions .... " (p.Io).

113 See infra 2593-95. 114 On the "law of humanity," see Ruti G. Teitel, Humanity's Law: Rule of Law for the New

Global Politics, 35 CORNELL INT'L L.J. 355 (2002). 115 See, e.g., Knight v. Florida, 528 U.S. 990, 995 (I999) (Breyer, J., dissenting) (citing the Privy

Council regarding the "inhumanity" of death penalty delays). 116 See Lawrence v. Texas, I23 S. Ct. 2472 (2003) (describing Fourteenth Amendment "due

process" rights understanding); Atkins v. Virginia, 536 U.S. 304 (2002) (analyzing Eighth Amend­ment jurisprudence); Washington v. Glucksberg, 52I U.S. 702, 785-87 (I997) (Souter, J., concur­ring in judgment) (referring to the law of the Netherlands when discussing the right to assisted suicide); Thompson v. Oklahoma, 487 U.S. 8I5, 830 (1988) (plurality opinion) (holding that the execution of juveniles violates norms of the Western European community); see also United States v. Stanley, 483 U.S. 669, 7Io (I987) (O'Connor, J., concurring in part and dissenting in part) (not­ing the relevance of Nuremberg Trials procedures regarding consent standards for medical ex­perimentalism); Thop v. Dulles, 350 U.S. 86, IOI (I958) (plurality opinion) (inquiring into "evolving standards of decency').

117 See Teitel, supra note l 14. 118 Due process has been deemed to include procedures necessary for the "protection of ulti­

mate decency in a civilized society." Adamson v. California, 332 U.S. 46, 6I (I947). Comparative authority is informed by international law as well. See, e.g., The Universal Declaration of Human Rights, G.A. Res. 2I7A, U.N. GAOR, 3rd Sess., Part I, at 71, U.N. Doc A/810 (I948).

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<lure (Due Process)" (p.1043-1154), Comparative Constitutionalism ad­vocates a core bill of criminal procedural rights and claims that there is worldwide convergence toward that ideal (p. 104 7-48). Although this is by far the area of greatest constitutional integration, criminal process does not necessarily fall within the rubric of constitutional­ism, 119 but instead depends on the particularities of a political system and legal culture.120 Moreover, the normative desirability of such a convergence is debatable, 121 particularly because of the same stark dif­ferences in legal cultures and political traditions. 122

The normative role of comparativism in constitutional interpreta­tion is most evident in current American constitutional doctrine in the context of Fifth, Eighth, and Fourteenth Amendment jurisprudence, with respect to which the Court has turned outward to construct its sense of evolving human decency and order. Particularly when inter­preting the Eighth Amendment protection from "cruel and unusual punishment,'' case law from Thompson v. Oklahoma123 through Stan­ford v. Kentucky124 and Atkins v. Virginia 125 demonstrates an increas­ing reliance on foreign sources of law to support the Court's findings. In Stanford, Justice Brennan in dissent relied on comparative materi­als to support his notion that "contemporary standards of decency" would preclude the execution of juveniles.126 A plurality in Thompson relied on comparative experience to inform the meaning of "civilized standards of decency,''127 over a vigorous dissent challenging foreign

119 Indeed, most other comparative constitutional law and domestic constitutional law case­books do not include criminal procedure, which tends to be addressed separately. See MIRJAN R. DAMASKA, THE FACES OF JUSTICE AND STATE AUTHORITY: A COMPARATIVE APPROACH TO THE LEGAL PROCESS (1986); STONE ET AL., supra note 38; SULLIVAN & GUNTHER, supra note 38; CRIMINAL PROCEDURE: A WORLDWIDE STUDY (Craig M. Bradley ed., 1999). But see MAURO CAPPELLETTI & WILLIAM COHEN, COMPARATIVE CONSTITUTIONAL LAW: CASES AND MATERIALS 381-456, 494-542 (1979).

120 See generally THOMAS M. FRANCK, COMPARATIVE CONSTITUTIONAL PROCESS, CASES AND MATERIALS: FUNDAMENTAL RIGHTS IN THE COMMON LAW NATIONS (1968).

121 On convergence in criminal law, compare GEORGE P. FLETCHER, BASIC CONCEPTS OF CRIMINAL LAW (1998), which argues for convergence, with JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE (2003), which discusses divergence among American, German, and French criminal jus­tice policies. For the danger of misinterpreting similarities in comparative analysis, see William P. Alford, On the Limits of"Grand Theory" in Comparative Law, 61 WASH. L. REV. 945, 955 (1986).

122 See Mirjan Damaska, The Uncertain Fate of Evidentiary Transplants: Anglo-American and Continental Experiments, 45 AM. J. COMP. L. 839, 844-47, 851 (1997) (asserting that the "trans­plantation of fact finding arrangements between common law and civil law systems would give rise to serious strains in the recipient justice system").

123 487 U.S. 815 (1988). 124 492 U.S. 361 (1989). 12s 536 U.S. 304 (2002). 126 Stanford, 492 U.S. at 389-go (Brennan, J., dissenting). 121 Thompson, 487 U.S. at 830-31 (plurality opinion).

2004] BOOK REVIEW 2595

law's relevance to the "fundamental beliefs of this nation."128 In At­kins, a majority used comparative analysis to find that, "within the world community," execution of the mentally retarded is "overwhelm­ingly disapproved."129 Finally, last Term, in Lawrence v. Texas, the Court held that the criminalization of sodomy violated a due process "liberty" by relying in part on European authority and on "values we share with a wider civilization."130

At present, there is an indisputable judicial consensus regarding comparativism in the law of humanity. Even those Justices opposing comparativism's uses in the rights-expanding decisions above have lit­tle hesitation to rely on such authority in other related rights areas, such as abortion and euthanasia, in which such analysis serves their position.13 1 Converging understandings of human decency are now beginning to construct a fledgling global rule of law. 132

CONCLUSION

This Review analyzed Comparative Constitutionalism as a contem­porary revival and extension of the functionalist school of thought. It discussed this extension's legitimacy and its implications for present global politics. It then turned to the contemporary claim for compara­tivism as judicial discourse and its potential for advancing cosmopoli­tan decisionmaking. Comparative constitutional interpretation's nor­mative aims and effects were discussed over a continuum of constitutional change and development. Finally, the Review looked to present adjudicatory practices and concluded that they reflect an emerging normative use of comparative law in the area of constitu­tional rights, a development that supports a modest form of Compara­tive Constitutionalism 's essential claim. Since the judiciary tends to be removed from politics, however, ultimately the advancement of global

128 Id. at 868 n.4 (Scalia, J., dissenting). 129 Atkins, 536 U.S. at 316 n.21 (2002). Once again, there was a vigorous dissent. See id. at

324-25 (Rehnquist, C.J., dissenting) (refusing to find other countries' views relevant to the judicial ascertaining of "contemporary American conceptions of decency").

l30 See Lawrence v. Texas, 123 S. Ct. 2472, 2483 (referring to the right at issue "as an integral part of human freedom in many other countries').

131 See Washington v. Glucksberg, 521 U.S. 702, 710 n.8, 718 n.16 (1997) (citing Rodriguez v. British Columbia, [1993] 3 S.C.R. 519) (discussing assisted suicide laws in Austria, Spain, Italy, the United Kingdom, the Netherlands, Denmark, Switzerland, and France); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 945 n.1 (1992) (Rehnquist, C.J., concurring in the judg­ment in part and dissenting in part).

132 This process is also accelerated by international agreements that are themselves instantia­tions of comparative constitutionalism, such as the newly established International Criminal Court, whose charter provides for a new consensus on the international regulation and enforce­ment of certain baseline rule-of-law norms. See Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. A/Conf. 183/9 (2002).

HARVARD LAW REVIEW [Vol. 117:2570

consensus will necessitate wider transnational dissemination. Com­parative Constitutionalism provides a significant step in that direction.

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